48 So. 3d 1281
La. Ct. App.2010Background
- Dominique, a minor, developed scoliosis and underwent posterior spinal fusion with instrumentation by Dr. Frierson at OLOL on May 31, 2004.
- Feb. 2006: Dominique developed an abscess at the surgical site; Dr. Frierson incised and drained it on Feb. 5, 2006.
- Family left against medical advice; discharge notes indicate desire for Texas Children's Hospital care.
- Jan. 30, 2009: Mr. Lawrence filed a petition to impanel a medical review panel naming OLOL and Dr. Frierson; later amended petition with alleged implants and infection-related issues.
- Defendants filed peremptory exceptions of prescription; district court sustained them on Jan. 11, 2010, leading to dismissal of claims against OLOL and Frierson; judgment entered Apr. 14, 2010; appeal followed.
- La. R.S. 9:5628 provides one-year-from-act or one-year-from-discovery; discovery rule applies but ends after three years; prescription is either one-year or three-year limits; minors are within the scope of the statute.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Dominique’s medical malpractice claim is prescribed under La. R.S. 9:5628. | Lawrence argues contra non valentem interrupted prescription. | OLOL/Frierson contend timely filing not shown; discovery occurred by mid-2006. | The court upheld prescription; no timely interruption proven. |
| Whether contra non valentem applies to toll prescription in this MMA context. | Affidavits suggest delayed discovery; records show extended uncertainty. | Discovery occurred by mid-2006; later evidence insufficient to interrupt prescription. | Contra non valentem not proven to interrupt prescription. |
| Whether the district court properly admitted or treated evidence (affidavits) for prescription analysis. | Affidavits should be considered in opposition to prescription. | Affidavits were hearsay and inadmissible. | Affidavits inadmissible; supplementation granted only to the record, but without changing outcome. |
Key Cases Cited
- Campo v. Correa, 828 So.2d 502 (La. 2002) (discovery rule and accrual in contra non valentem analysis)
- Borel v. Young, 989 So.2d 42 (La. 2007) (prescription periods; MMA context applicability)
- Holmes v. LSU/E. A. Conway Med. Ctr., 997 So.2d 605 (La. App. 2d Cir. 2008) (treatment of discovery rule and prescription burden in MMA cases)
- TIG Ins. Co. v. Louisiana Workers' Comp. Corp., 22 So.3d 981 (La. App. 1st Cir. 2009) (standard for appellate review of prescription findings under manifest error)
- Med. Review Panel Proceeding of Williams v. Lewis, 17 So.3d 26 (La. App. 1st Cir. 2009) (mandates for MMA petition and discovery of alleged malpractice)